Supreme Court on Trump's travel ban: Why its tone sounds a bit different

putting it in perspective

The high court's ruling, which partially allowed the travel ban to take effect, is not a hint of the justices' ultimate decision, so much as it is an expression of the court's adherence to formality.

International passengers arrived at Washington Dulles International Airport on June 26, the day the US Supreme Court granted parts of the Trump administration’s emergency request to put its travel ban into effect later in the week, pending further judicial review. The court said it would address the case in October.

June 27, 2017
—The Supreme Court’s Monday ruling on President Trump’s proposed travel ban was certainly important on substance.

Via a nine-to-zero vote, high court justices allowed Mr. Trump to prohibit entry into the US of some (but not all) people from majority-Muslim countries he declares to be dangerous.

But the ruling’s tone was significant as well. What it did not say may indicate volumes about the Supreme Court’s approach to this big, defining issue of the early Trump presidency.

The high court ruling did not try to tease out Trump’s thoughts from his angry tweets or outrageous campaign statements. It did not make judgments about the president’s personal attitude toward Muslims. In that respect it was different from lower court rulings that have blocked the ban from taking effect since the White House issued it in March.

That does not necessarily indicate that Trump will win – or lose – when the court hears full arguments on the case in the fall. What it does mean is that the Supreme Court does not want to match Trump’s norm-busting, combative approach to the issue. They will treat him as being inherently the same as other recent US chief executives. That means they will give him wide latitude to make judgments about what is in the best interests of US national security. But they won’t cede him complete power on this important question.

“They dialed down the temperature a few notches,” says Josh Blackman, an associate professor at the South Texas College of Law who specializes in constitutional jurisprudence.

It’s important to remember that Monday’s action is only a preliminary round. The Supreme Court was considering lower-court rulings that had held the proposed travel ban to be such an egregious infringement on religious rights that it needed to be prevented from taking effect on an immediate, emergency basis.

The high court both agreed and disagreed with this conclusion. On the one hand, Trump can’t ban from entry anyone with a “bona fide relationship” to the US, justices ruled. That includes foreigners with a job, spouse, or school in America. On the other hand, citizens of certain Muslim-majority countries without such a connection now can be barred from entry, effective immediately. Many refugees may fall into this category.

The Supreme Court also accepted the travel ban case for full consideration, with arguments to be held in the fall. That could set up a showdown between the president’s historic ability to set the nation’s national security priorities and the Constitution’s prohibition against discrimination on the basis of religious belief.

Still, the arguments might never happen. The travel ban’s purpose, according to the administration, was to institute a limited pause in immigration to give officials time to study procedures and decide if stricter vetting is necessary. By fall, the court may decide that the time necessary for this review has passed and pronounce the whole thing moot.

“It’s possible the court will never rule on the case,” says Lyle Denniston, dean of the Supreme Court press corps and a legal expert at the National Constitution Center.

In any event, it’s now clear that the Supreme Court is approaching the issue in a somewhat different frame of mind than did lower federal circuit courts. That could explain, in part, the difference in their legal conclusions.

Circuit court judges who ruled on the issue often cited Trump’s non-presidential personality as a basis for their decisions. They talked about and referred to his intemperate tweets and campaign speeches. Some lower curt judges claimed that these means of communication showed, beyond a doubt, that Trump’s purpose was based in prejudice against Muslims, and not in a true concern to protect national security.

To some extent, these judges responded in kind. In May, the US Court of Appeals for the Fourth Circuit had harsh words for the president, saying his then-newly revised order “drips with religious intolerance, animus and discrimination.”

That statement is “a bit over the top,” says Professor Blackman.

Campaign statements are of necessity an exaggerated form of speech, and they haven’t before entered into a court’s consideration of presidential intentions, Blackman says. The Supreme Court recognizes this, and nowhere cited Trump’s tweets or irregular speech. They returned to what Blackman calls a “presumption of regularity”: this president is like any other. He won’t be treated as a unique danger who demands a unique approach to the law.

“Trump could still lose. But it’s done in regular order,” says the South Texas law professor.

It’s true that there is nothing in the Supreme Court order that indicates justices are treating Trump differently than any other US chief executive, says Mr. Denniston of the National Constitution Center.

Traditionally the courts have given presidents great leeway on national security. Justices are reluctant to replace a chief executive’s judgment in this area with their own.

The problem is, says Denniston, that Trump is different. For the Supreme Court, that’s the apparently unacknowledged elephant in the room. “I’m disappointed there aren’t passing hints this president is not normal,” Denniston says.

Partisanship might be in play here, of course. Political leanings play a role in court decisions, from the Supreme Court to federal circuit courts and down the line.

Chief Justice John Roberts would probably disagree with that – he works hard to try and shape decisions that do not appear to have been decided along strictly partisan lines. But judges are citizens, too.

“At some level these decisions can be political,” says Carl Tobias, a law professor at the University of Richmond.